ADMINISTRATIVE APPEALS

During 1981, there were 2,019 new administrative appeals received by the Office of Privacy and Information Appeals and 2,198 appeals were closed. At the beginning of the year, the Office had a pending caseload of 855 appeals. There were 743 appeals on hand at the end of the year.

Of the 2,198 cases closed during the year, 762 involved requests under the Freedom of Information Act. The breakdown of these closings is as follows:

- Modified Action Resulting in Total Grant 5
- Reversed or Remanded(1) 27
- Affirmed 350
- Modified Action Affirmed(2) 170
- Miscellaneous 210

The miscellaneous closings consist of the following:

- Failure of the component to process initial action within statutory time limit(3)

102
- Miscellaneous (e.g., individual appeal consolidated into "subject matter appeal"; all requested information had been released; appeal file erroneously opened; etc. 56
- No records 7
- Requester withdrew appeal 21

-No agency jurisdiction (appeals from state, local or other federal agency actions)

7

- Fee waivers denied

 8
- Fee waivers granted 1

- Duplicate file

4
- Judicial adjudication 4

The statutory provisions on the basis of which denials of Freedom of Information requests were predicated at the administrative appeals level are as follows:

5 U.S.C. § 552(b)(1) 160
5 U.S.C. § 552(b)(2) 38
5 U.S.C. § 552(b)(3) 48
5 U.S.C. § 552(b)(4) 11
5 U.S.C. § 552(b)(5) 46
5 U.S.C. § 552(b)(6) 36
5 U.S.C. § 552(b)(7)(A) 58
5 U.S.C. § 552(b)(7)(B) 3
5 U.S.C. § 552(b)(7)(C) 349
5 U.S.C. § 552(b)(7)(D) 274
5 U.S.C. § 552(b)(7)(E) 32
5 U.S.C. § 552(b)(7)(F) 9

Exemption 3 was asserted at the administrative appeals level in conjunction with the following statutes:

Rule 6(e), Federal Rules of Criminal Procedure 28
15 U.S.C. § 1313 2
26 U.S.C. § 6103 5
28 U.S.C. § 534 5
42 U.S.C. § 2000g-2(b) 2
50 U.S.C. § 402-403 3
18 U.S.C. § 2510 2
5 U.S.C. § 1314g 1

The final actions on Freedom of Information administrative appeals involving continued denials of access to requested records were taken by the following officials:

Acting Associate Attorney General
Robert N. Ford . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 3

Associate Attorney General
John H. Shenefield by
Quinlin J. Shea, Jr.,
Director, Office of Privacy and Information Appeals . . . . . . . . . . 10

Acting Associate Attorney General
Robert N. Ford by
Quinlin J. Shea, Jr.,
Director, Office of Privacy and Information Appeals . . . . . . . . . . . 226

Acting Assistant Attorney General
Office of Legal Policy
Ronald E. Gainer by
Quinlin J. Shea, Jr.,
Director, Office of Privacy and Information Appeals . . . . . . . .. . . . .7

Assistant Attorney General
Office of Legal Policy
Jonathan C. Rose by
Quinlin J. Shea, Jr.,
Director, Office of Privacy and Information Appeals . . . . . . .. . . . . 20

Assistant Attorney General
Office of Legal Policy
Jonathan C. Rose by
Richard L. Huff, Acting Director
Office of Privacy and Information Appeals . . . . . . . . . . . . . . .. . . . 244

Assistant Attorney General
Office of Legal Policy
Jonathan C. Rose by
Jean K. FitzSimon, Acting Director
Office of Privacy and Information Appeals . . . . . . . . . . . . . . .. . . . 10

TOTAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 520

All miscellaneous closings were effected the Directors of the Office of Privacy and Information Appeals, either in their own names or for the Associate Attorney General or the Assistant Attorney General, Office of Legal Policy.

In addition to the 762 Freedom of Information administrative appeals closed this year, 1,436 "Privacy Act" (first-party request)(4) administrative appeals were also closed. The breakdown of the Privacy Act appeal closings is as follows:

Modified Action Resulting in Total Grant 7
Reversed or Remanded(5) 43
Affirmed 710
Modified Action Affirmed(6) 300
Miscellaneous 376

The miscellaneous closings consist of the following:

- Failure of the component to process initial action within statutory time limit(7)

240
- Miscellaneous (e.g., individual appeal consolidated into "subject matter appeal"; all requested information had been released 63
- No records 6
- Requester withdrew appeal 6

-No agency jurisdiction (appeals from state, local or other federal agency actions)

23

- Fee waivers denied

 27
- Fee waivers granted 2

- Duplicate file

8
- Judicial adjudication 1

The statutory provisions on the basis of which denials of first-party requests for access were predicated at the administrative appeals level were as follows:

5 U.S.C. § 552a(j)(2) 6
5 U.S.C. § 552a(k)(1) 11
5 U.S.C. § 552a(k)(5) 13
5 U.S.C. § 552(b)(1) 376
5 U.S.C. § 552(b)(2) 136
5 U.S.C. § 552(b)(3) 61
5 U.S.C. § 552(b)(4) 1
5 U.S.C. § 552(b)(5) 57
5 U.S.C. § 552(b)(6) 48
5 U.S.C. § 552(b)(7)(A) 96
5 U.S.C. § 552(b)(7)(B) 3
5 U.S.C. § 552(b)(7)(C) 779
5 U.S.C. § 552(b)(7)(D) 627
5 U.S.C. § 552(b)(7)(E) 92
5 U.S.C. § 552(b)(7)(F) 21

Exemption 3 of the Freedom of Information Act was asserted at the administrative appeals level in conjunction with the following statutes:

Rule 6(e), Federal Rules of Criminal Procedure 34
26 U.S.C. § 6103 8
28 U.S.C. § 534 12
50 U.S.C. § 402-403 3
18 U.S.C. § 2510 4

The final actions on Privacy Act administrative appeals involving continued denials of access to requested records were taken by the following officials:

Acting Associate Attorney General
Robert N. Ford . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . .5

Associate Attorney General
John H. Shenefield by
Quinlin J. Shea, Jr.,
Director, Office of Privacy and Information Appeals . . . . . . . . . .. . . . . . . 28

Acting Associate Attorney General
Robert N. Ford by
Quinlin J. Shea, Jr.,
Director, Office of Privacy and Information Appeals . . . . . . . . . .. . . . . . 362

Acting Assistant Attorney General
Office of Legal Policy
Ronald E. Gainer by
Quinlin J. Shea, Jr.,
Director, Office of Privacy and Information Appeals . . . . . . . . . . . . . . . . .17

Assistant Attorney General
Office of Legal Policy
Jonathan C. Rose by
Quinlin J. Shea, Jr.,
Director, Office of Privacy and Information Appeals . . . . . . . . . . . . . . . . 127

Assistant Attorney General
Office of Legal Policy
Jonathan C. Rose by
Richard L. Huff, Acting Director
Office of Privacy and Information Appeals . . . . . . . . . . . . . . . . . . . . . . . 450

Assistant Attorney General
Office of Legal Policy
Jonathan C. Rose by
Jean K. FitzSimon, Acting Director
Office of Privacy and Information Appeals . . . . . . . . . . . . . . . . . . . . . .. . . 21

TOTAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010

All miscellaneous closings were effected the Directors of the Office of Privacy and Information Appeals, either in their own names or for the Associate Attorney General or the Assistant Attorney General, Office of Legal Policy.

The costs of processing administrative appeals were as follows: (8)

Freedom of Information Act related expenses:
Services $257,152
Other 56,448
Total $313,600
Privacy Act related expenses:
Services $477,568
Other 104,832
Total $582,400




**** footnotes ****

1 This includes appeals in which the cases were remanded to the components with instructions to reprocess, or process, the relevant records. Reprocessing follows a determination that the processing was initially carried out under a significantly erroneous standard. A remand for processing results from a determination that a refusal to process requested records, or to confirm or deny their existence, was erroneous.

2 These represent modifications of initial actions arrived at in the course of the appeals process, by agreement between the component and the appeals office.

3 Upon receipt of an appeal based on the component's failure to locate and process requested records within the statutory time limits, the appeals office informs the component of the appeal, but advises the requester that it lacks the personnel resources to conduct the comprehensive record reviews necessary to make initial determinations on requested records. The appeals office also advises the requester that, if he or she is dissatisfied with the component's substantive action on the request, an appeal on the merits will be opened. The requester is also informed that he or she may treat this notification from the appeals office as a denial of the appeal and bring suit in an appropriate federal court. It has been the experience of the appeals office that a significant number of appeals based on actual denials of access, as opposed to appeals based on a component's failure to respond, considerably narrow the volume of records and issues that must be considered. Accordingly, this approach contributes to the efficient operation of the overall appeals process, without ever actually denying a requester the right to a review of an initial action on the merits.

4 In conformity with Department of Justice regulations, all requests by individuals seeking access to records about themselves are, to the extent possible, treated as Privacy Act requests. 28 C.F.R. 16.57. In fact, however, given the nature of the records requested and the systems of records within which they are maintained (most of which have been exempted from Privacy Act access pursuant to 5 U.S.C. § 552a(j)(2)), it is quite rare for actual denials of access to be predicated on specific Privacy Act exemptions. Such exemptions were cited in approximately 30 of the cases adjudicated by the appeals office and, in most of those cases, FOIA exemptions were cited as well. Nonetheless, all first-party requests are being treated as Privacy Act requests for purposes of case count and cost allocation.

5 See note 1, supra.

6 See note 2, supra.

7 See note 3, supra.

8 See note 4, supra.


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